' MAULVI ANWARUL HAQ, J.---Vide Mutation No. 46 attested on 13-3-2004, the respondent purchased the suit- land, fully described in the plaint, for a consideration of Rs.18,00,000. On 27-4-2004, the appellant filed a suit for possession of the suit-land by pre-emption. According to him the land had in fact been sold for a sum of Rs.11,00,000. He claimed to be an owner of the adjacent land and performance of Talbs was pleaded. The respondents filed written statement. They insisted that they have paid Rs.18,00,000 and have also incurred as expenditure Rs.1,08,007 on the completion of sale. The rest of allegations were denied. I may note here that it was pleaded that the appellant was aware of the sale on the day the mutation was attested. Issues were.
Framed. Evidence of the parties was recorded. Learned trial Court dismissed the suit on 9-3-2005. It may be noted that issue of preferential right was answered in favour of the appellant: Issue regarding actual payment of the ostensible price and the said expenses, was found in favour of the respondents. It was held that the Talbs have not been proved. First appeal was filed by the appellant. The findings on all the issues were confirmed by learned District judge, T.T. Singh who dismissed the first appeal on 9-7-2005.
2. Mr. S.M. Masood, Advocate, learned counsel for the appellant has contended that the learned courts below have erred in law while relying upon statement of P.W.3. According to him admission made by the said witness qua the knowledge of the appellant on the day of mutation was not binding on his client. He relies on the case Farrukh Jabeen and others v. Maqbool Hussain PLD 2004 SC 499. Ms. Sumaira Afzal, Advocate, learned counsel for the respondents, on the other hand, contends that the said admission of P.W.3 is to be considered in the light of over all evidence on record as also the pleadings. According to her the plaint in this case suffers from a fatal defect in the matter of Talbs inasmuch as the place of making of Talbs has not been disclosed in the plaint.
3. I have gone through the record of the learned trial Court with the assistance of the learned counsel for the parties. It will be seen that before me only the said matter of Talbs is being agitated. In para.2 of the plaint it was stated that the appellant came to know about the sale on 9-4-2004 at 6-00 p.m. When Muhammad Irshad informed him that the respondents have secretly purchased the land. Immediately he performed first Talb and at that time Syed Abid Hussain Gillani and Muhammad Saeed were also sitting with him. I have already noted above that it has been specifically pleaded by the respondents that the appellant was aware of the sale on the very day the mutation was attested. The appellant appeared as P.W.6 to make statement in accordance with the said pleadings adding that at that time he was present in his house. It was suggested to him that he was aware of the sale on the day of mutation. However, he denied the said suggestion: P.W.3 is said Muhammad Irshad who, according to the appellant in his plaint as well as in the witness-box informed him about the sale. He was aged 29 years on 10-11-2004 when his statement was recorded. In his examination-in-chief he made the following statement regarding acquisition of knowledge of sale by him:- {{URDU TEXT}} ' Going by the said statement in examinationin-chief, the witness was told by the Patwari that 2/3 days ago some land has been sold in the village and the same day in the evening, he informed the appellant. This would make the date as 15/16-3-2004. In his cross-examination he was given a straight suggestion and he responded as follows:-- {{URDU TEXT}} ' I may note here that similar suggestions were given to Saeed P.W.4 as well as Syed Abid Hussain P.W.5 and the response was that they are not aware that the plaintiff had acquired knowledge of sale on the day the mutation was attested.
4. Muhammad Yaqub, respondent No.1 appeared as D.W.1. He stated in categorical terms that on the day, the mutation was attested, the appellant had come to know about the sale and that his son had congratulated him.
He was cross-examined at some considerable length. Not a single question was put or suggestion was given as to the said statement made by the D.W.
1.
5. Mr. S.M. Masood, Advocate urges that the absence of a suggestion or question would not be fatal as D.W.1 has stated in his cross-examination that he was not present when the mutation was attested. I find that the said admission is there. However, nothing turns on the same. The mutation in question i.e. Exh.P.11 was entered on 7-2-2004. It was verified by the Girdawar on 10-2-2004 and was put before the Revenue Officer on 21-2-2004.
On this date the record of the statement of the vendor and Muhammad Yaqub, vendee was made. However, it was observed that the mutation fee is deficient. The matter was accordingly adjourned to be put up after making up of deficiency in the said fee. The deficiency was made up and the Revenue Officer took up the mutation on 13-3-2004 and attested the same on this date. No one was present on that date. Reason being that necessary proceedings have already been completed on 21-2-2004 and the matter was adjourned only for deposit of deficient amount of mutation fee. I have examined the judgment in the said case of Farrukh Jabeen, being relied upon by Mr. S.M. Masood, Advocate. In the said case, reliance was placed on the statement of D.W. Namely Jafar Khan who had admitted relationship between the preemptor and the vendor. Their Lordships observed that the said piece of evidence would not be binding on the concerned party and secondly such an obligatory statement made by witness in the course of cross-examination would be treated only as inferential evidence. To my mind, said admission made by P.W.3 is to be treated accordingly of course along with other evidence on record which I have already referred to above. In view or the specific pleadings of the respondents as to the knowledge of sale on the day of mutation coupled with the said response made by P.Ws.3, 4 and 5 to the relevant suggestions and failure to challenge the .Categorical statement made by D. W.1 in accordance with his pleadings that the appellant was aware of the sale on the day of mutation. I do hold that the said admission by P.W.3 does go to support the said unchallenged statement made by respondent No.1 in the witness-box.
Consequently, I uphold the findings recorded by the learned Courts below on the question of Talbs. I am not commenting upon the said second contention of the learned counsel for the respondents for the reason that sufficient particulars as to date, time and place are present in the plaint. Even names of the witnesses have been disclosed.